This up-date is offered to respond to the many email and phone messages we have received regarding the Coronavirus Disease and mandatory school closures and is not all-inclusive.  As additional federal and state guidance becomes available, it will be shared.  Please understand that this is an evolving situation and federal and state-level guidance takes some time to develop. 

The U.S. Department of Education has issued important interim guidance that outlines states’ responsibilities to infants, toddlers, and children with disabilities and their families, and to the staff serving these children with regards to providing services to children with disabilities.  For questions regarding providing services please see: Questions and Answers on Providing Services to Children with Disabilities during the Coronavirus Disease 2019 Outbreak (March 2020)[1].

Question A-1: Is an LEA required to continue to provide a free appropriate public education (FAPE) to students with disabilities during a school closure caused by a COVID-19 outbreak?

Answer: The IDEA, Section 504, and Title II of the ADA do not specifically address a situation in which elementary and secondary schools are closed for an extended period of time (generally more than 10 consecutive days) because of exceptional circumstances, such as an outbreak of a particular disease.

If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time. Once school resumes, the LEA must make every effort to provide special education and related services to the child in accordance with the child’s individualized education program (IEP) or, for students entitled to FAPE under Section 504, consistent with a plan developed to meet the requirements of Section 504. The Department understands there may be exceptional circumstances that could affect how a particular service is provided. In addition, an IEP Team and, as appropriate to an individual student with a disability, the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, would be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.

If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. (34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)). SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504. (34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)).

OPI has received other questions with regards to IDEA timelines.  It is important to note that no timelines have been waived and the U.S. Department of Education has not yet issued any specific guidance with regard to the Coronavirus Disease outbreak.  The Department has issued some relevant guidance in the past in response to natural disasters, specifically hurricanes. 

In Letter to New York State Education Department officials Pat Geary and James P. DeLorenzo (November 2012)[2]  OSEP addressed questions regarding timelines following hurricane Sandy:

Evaluations The IDEA provides that initial evaluations must be conducted within 60 calendar days of receiving parental consent, or within a State-established timeframe.  34 CFR §300.301(c)(l)(i).  The only exception to the 60-day timeframe is when the parent of a child repeatedly fails, or refuses to, produce the child for an evaluation, or the child enrolls in a school of another public agency (under certain limited circumstances).  34 CFR §300.30I (c)(1)(ii). The IDEA does not provide the Department with the flexibility to waive this requirement.  However, as noted above, the IDEA permits States to establish their own timeframes for the completion of evaluations.  34 CFR §300.30 l(c)(1)(ii). Therefore, New York may address this issue by establishing a State timeframe.  Under normal circumstances, the Department would expect that a State-established timeframe would be the same throughout the State.  However, under these unusual circumstances, it would be reasonable for New York to establish a different timeframe for completing evaluations of all children suspected of having a disability in those LEAs whose operations have been significantly affected by Hurricane Sandy. (Note:  Montana does not have a different timeframe than what the federal rules require.)  

 

Individualized Education Programs Under 34 CFR §300.323(c), a meeting to develop an individualized education program (IEP) for a child is conducted within 30 days of a determination that the child needs special education and related services; and as soon as possible following development of the IEP, special education and related services are made available the child in accordance with the child's IEP. This language provides some flexibility to LEAs that were affected by Hurricane Sandy -"as soon as possible" recognizes that there may be some isolated circumstances where, because of damage caused by the storm, power outages, etc., an LEA may need to delay the start of special education and related services to a particular child. In addition, if an LEA closes its schools because of an emergency such as Hurricane Sandy, and does not provide any educational services to the general student population, then that LEA is not required to provide services to students with disabilities during that same period of time. However, once a school is open, the LEA must make every effort to make available special education and related services to the child in accordance with the child's  IEP.

 

IEP Reviews The IDEA requires that the child's IEP be reviewed periodically, but not less than annually, to determine whether the annual goals for the child are being achieved; and revise the IEP, as appropriate.  34 CFR §300.324(b).  There is some flexibility in this provision.  For example, in making changes to a child's IEP after the annual IEP Team meeting for a school year, the parent of a child with a disability and the public agency may agree not to convene an IEP Team meeting for the purposes of making those changes, and instead may develop a written document to amend or modify the child's current IEP. 34 CFR §300.324(a)(4). In addition, when conducting IEP Team meetings and placement meetings, the parent of a child with a disability and a public agency may agree to use alternative means of meeting participation requirements, such as video conferences and conference calls.  See 34 CFR §300.328.

Also please see the Non-Regulatory Guidance on Flexibility and Waivers for Grantees and Program Participants Impacted by Federally Declared Disasters (U.S. Dept. of Education, September 2018)[3]:

C-4.In the event that a school is closed for an extended period of time due to a disaster, would an IEP Team be required to meet? Would an LEA be required to conduct an evaluation of a student with a disability?

IEP Teams are not required to meet in person while schools are closed. IEP Teams may continue to work with parents and students with disabilities during such school closures and offer advice, as needed. If an evaluation of a student with a disability requires a face-to-face meeting or observation, the evaluation would need to be delayed until school reopens. Evaluations and reevaluations that do not require face-to-face assessments or observations may take place while schools are closed, if the parent consents. These same principles apply to similar activities conducted by appropriate personnel for a student with a disability who has a plan developed under Section 504 or who is being evaluated under Section 504.

 

Please remember that like all special education there may be different actions based on each individual student’s needs and circumstances.  As always, remember to document your contacts with parents and provide all required notices. OPI will offer additional resources and guidance when it becomes available. 

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